Unlawful 8.5% Cap Reflects Challenges of Texas’ Special Education System

Jacob, an 8-year-old who has been diagnosed with dyslexia, makes Valentine's Day cards with his family.

Updated February 19, 2018

The way special needs educator Susan Bineham sees it, having a cap on special education enrollment is like having 10 students who need wheelchairs and deciding only eight of them can use the access ramps.

“[The cap] is pretty clear when it is laid out physically,” said Bineham, a former Northside Independent School District special education teacher who is now head of school at The Academy at Morgan’s Wonderland, a San Antonio private school for special-needs children.

Last month, the U.S. Department of Education found Texas violated federal law in failing to ensure districts were adequately identifying and providing students with special education services. The department reported that “some [public school districts] took actions specifically designed to decrease the percentage” of students enrolled in special education, effectively capping the statewide percentage of children enrolled in special-ed programming at 8.5 percent.

During the time the cap was said to be in effect, the percentage of Texas students receiving special education programming decreased from 11.8 percent in the 2003-04 school year to 8.7 percent in 2015-16.

Following the federal report, Gov. Greg Abbott demanded a corrective action plan from the Texas Education Agency (TEA). The state agency responded by outlining a plan that would spend $84.5 million over the next five years on special education staffing, professional development, and outreach campaigns.

The effect of the enrollment cap was far-reaching, Bineham said. On her campus, teachers and administrators didn’t necessarily identify students in need of special education services with the cap in mind, but they may have released students from those services earlier than they would have otherwise.

“We would have liked to carry [those students] all the way to high school in case there was something they needed,” she said. “People would say, ‘I think they are doing fine,’ but that was because of the supports they had. How do I know how much they need their supports when they don’t have them?”

From 2004, when the cap was first implemented, to 2017, when state legislators passed a bill prohibiting the state from capping special education services, Texas’ special education enrollment decreased from 11.6 percent to 8.6 percent. Over the same period, the United States’ average special-ed enrollment hovered around 13 percent.

Lee Mason, associate professor of special education at the University of Texas at San Antonio, said an exact number of students in need of special education services is hard to pinpoint, because each state operates based on individual and sometimes different standards. Even though all states are bound to follow the federal Individuals with Disabilities Education Act, states can implement policies differently.

Mason estimated the actual number of students in need of special education services is “somewhere between 11 and 13 percent,” based on the overall national percentage.

Lauren Hall, whose son Jacob is an 8-year-old North East ISD student who has been diagnosed with dyslexia, said that even though the enrollment cap is no longer in effect, navigating the special education system is immensely challenging.

Jacob, who came to Texas from a district in Tennessee just prior to the 2017-18 school year, already had a plan outlining specific guidelines based on his special needs, or an Individual Education Plan (IEP), in place. Parts of Jacob’s plan at Woodstone Elementary School focused on speech therapy and accommodations needed for his learning disability.

Before the start of the school year, his parents wrote a letter to Jacob’s new principal asking for an evaluation. A few weeks later, the family sat down with school officials to determine whether Jacob could benefit from occupational therapy to aid his handwriting, reading, and writing skills.

Instead of being enrolled in special education programming, the Halls were notified that Jacob already had met his goals for speech therapy as stated in his previous IEP, and did not need occupational therapy. Jacob was classified in a different category, Section 504, that comes shy of special education.

Section 504 still allows a student certain accommodations under the Americans with Disabilities Act. It applies to academic, nonacademic, and after-school activities.

Throughout the fall semester, the Halls continued to request an evaluation for Jacob to determine the need for occupational therapy services, eventually receiving word that the district would pay for an evaluation.

“If everything works out, the school will agree to the services for the school therapist, occupational therapist, and speech therapist,” Hall said. “Maybe by spring break, he can finally get the services he needs.”

In the meantime, she and her husband have been taking Jacob to private occupational therapy sessions. Hall said Jacob has seen a marked increase in a number of areas: balance, tracking, reading, and writing.

NEISD Executive Director of Special Education Gerard Cortez said there shouldn’t be a situation where a parent has concerns about services and not have those concerns addressed.

“Anytime a parent feels like their child is not getting the services they need, the district is always willing to address those concerns or comments,” he said, noting that processes are in place to ensure the careful development of a student’s IEP. “…It is not an arbitrary decision.”

Those very processes, including legal requirements and district policies, can be confusing to parents, some of whom hire an advocate to act as an intermediary and help them navigate the system’s intricacies. Shanta Tyrone, mother to Chrishan, a 5-year-old autistic student in Northside ISD, did just that.

Tyrone said she learned about advocates through her involvement in organizations for parents of special-needs children.

Chrishan’s advocate sits in on Tyrone’s planning meetings with the district and translates some of the more complicated verbiage that Tyrone calls “intimidating and hard to understand.” Tyrone said that she asks her advocate to explain what requirements within her daughter’s IEP mean in practice.

“Let’s say the [IEP calls for] bouncing the ball five times with 80 percent accuracy. That’s kind of hard to understand,” Tyrone said. “How does that look? How many times are we going to try that over?”

As for making sure the services outlined in an IEP are delivered to the student, Bineham said each district has its own policy about how to hold teachers accountable.

“We had a teacher that follow[ed] students, kind of like a caseworker, that would say to teachers, ‘Do you understand? Do you need any help?’ Some of the teachers were great and would get it, but unless you are sitting in the classroom, watching the teachers teach the lesson, it is hard to know if everything is being followed in the IEP.”

Recent legislation aims to increase accountability within school districts. In 2015, Texas lawmakers passed Senate Bill 507 requiring districts to install audio and video monitoring equipment in special education classrooms if a parent, school board member, or staff member requests it. Districts then make arrangements to store the recordings for a period of time.

Theresa Galvez, a parent of a former Northside ISD student enrolled in special education, is pushing the NISD board to strongly implement the policy at the local level. Galvez said without cameras, districts can’t be held accountable for accidents in classrooms.

“We need cameras in special education classrooms to help keep the most vulnerable students safe,” Galvez said during the public comment portion of NISD’s Jan. 23 board meeting.

NISD Deputy Superintendent for Administration Ray Galindo said the district has already installed a number of cameras, but no parent has yet requested to review video.

The broader changes proposed in the TEA’s corrective action plan focus on creating better systems to identify all students in need of special education programming, create resources for local districts, and provide additional support for districts with greater need.

Beth Jones, San Antonio ISD’s senior executive director of special education services, said one of the proposed solutions is especially promising: having a regular schedule through which all districts’ special education programs are evaluated.

When the enrollment cap was in place, the TEA only visited districts when they scored poorly in the statewide evaluation system. Under the corrective action plan, every Texas school district would receive a visit from the TEA at least once every six years.

Jones said this will go a long way to ensuring all districts are in compliance with federal and state law, both in terms of enrollment numbers and otherwise.

Courtesy / Ramseur Family

Riley Ramseur (center) with siblings Joshua (left) and Grace

Angie and Steve Ramseur, parents to Riley, a 12-year-old student with Down syndrome, have concerns about the proposed corrective plan. Riley, who until fourth grade was enrolled in an NEISD elementary school, now attends the Academy, a school that serves 45 special-needs children. During Riley’s time in the public school system, the Ramseurs found that devoted teaching aides and teachers made a big difference.

They don’t believe the proposed plan focuses enough on human resources at the classroom level.

“You need boots on the ground. You need people in the classroom,” Angie Ramseur said. “I promise you, if that principal at the last school had two more aides, or had the budget, we would have had a different scenario.”

Mason agrees, saying with the current TEA plan, there may not be as much funding directed to classrooms, where money could be put to good use.

“It is a shame that all of these compensatory funds are sent to the administrators, and there will be much less trickle-down to the classroom level,” he said. “We are certainly better off using those funds to provide better services and better train our teachers and paraeducators.”

The TEA said it plans to collect feedback on its initial plan and then develop a final corrective plan to implement in the coming years.

Bineham filled out the feedback survey almost immediately after its release, saying the TEA should take every corrective action suggested. However, she acknowledges parents’ desires to have more money directed to the campus and district level.

“I agree with the parents, but I’m not going to disagree with the TEA, either,” Bineham said. “They need someone at the TEA to oversee it all. … When you are hiring at the district level, [you] need to hire boots on the ground – classroom people – not just another person in the central office to ensure compliance.”